Warrant required to obtain phone tracking data, court rules

US law enforcement officials must convince a judge to provide a search warrant before they obtain phone location data from a cell tower, according to an appeals court ruling poised to force the police to narrow down their evidence-gathering methods.

The three-judge panel of
the 11th US Circuit Court of Appeals ruled that Americans do have
the right to expect that their private movements will not be
tracked, and the mere action of driving past a cell tower with
their phone in hand is not enough cause for police to violate
that privacy. The judges ruled Wednesday that police who do
obtain the records without a judge's permission are violating a
suspect's rights under the Fourth Amendment, which protects
against unreasonable search and seizure.

“While committing a crime is certainly not within a
legitimate expectation of privacy, if the cell site location data
could place him near those scenes, if could place him near any
other scene,” the judges wrote, as quoted by the Associated
Press. “There is a reasonable privacy interest in being near
the home of a lover, or a dispensary of medication, or a place of
worship, or a house of ill repute.”

Police will still be able to obtain the records they need,
although they will have to adhere to a higher burden of proof to
earn a warrant that is currently required by a court order.

“The court's opinion is a resounding defense of the Fourth
Amendment's continuing vitality in the digital age,”
American Civil Liberties Union attorney Nathan Freed Wessler said
in a statement after the decision. “The court soundly
repudiates the government's argument that by merely using a cell
phone, people somehow surrender their privacy rights.”

The three-judge panel ruled in the case of Quartavious Davis, a
Miami resident who was sentenced to 162 years in prison for his
involvement in a series of violent armed robberies.

Davis was convicted in part because cell phone tracking data
placed him near the location of six of the robberies for which he
was convicted, a point of contention for his lawyers who claimed
police had no right to pull Davis' location records with a mere
court order. A lower court judge ruled in the police's favor,
deciding that they were allowed to do so under a “good faith”
exception that was later deemed unconstitutional.

The ruling cited a 2012 US Supreme Court decision in which
justices ruled that attaching a global positioning system device
to a suspect's car constituted a Fourth Amendment search. The
ruling was roundly criticized at the time for its failure to
address how police obtain location data, particularly whether
they need a warrant.

The decision essentially determined that police were wrong to
plant a device on a suspect's vehicle, although ACLU attorneys
argued that the Supreme Court should have gone further and noted
that the average cell phone pings a nearby tower every eight
seconds. For police to take advantage of that technology without
any oversight is far more intrusive than planting a device on a
car, according to the ACLU's Catherine Crump.

“After all, a cell phone is something you carry with you
wherever you go,” she told NPR. “And we don't think the
government should be accessing that type of information without a
really good reason, which they can demonstrate by getting a
warrant from a judge.”